Amendment 231

Levelling-up and Regeneration Bill - Report (7th Day) – in the House of Lords at 12:00 pm on 13 September 2023.

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Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

231: After Clause 128, insert the following new Clause—“Sustainable drainageThe Secretary of State must make provision under section 49 of the Flood and Water Management Act 2010 so as to bring Schedule 3 to that Act (sustainable drainage) into force in relation to England before the end of 31 December 2023, insofar as it is not already in force.”

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, in moving this amendment I will speak to it and to other amendments in this group. At the outset, I would like to declare my interests on the register, and also that I am co-chair of the All-Party Parliamentary Group on Water, and that I chaired a study into bioresources and was co-author, with Westminster Sustainable Business Forum, of Bricks and Water: Managing Flood Risk and Accelerating Adaptation in a Climate Emergency. Many of its recommendations lie behind these amendments.

I would like to speak to each of the amendments in turn. I thank my noble friend Lord Wigley for co-signing and supporting Amendment 231. This amendment, together with Amendments 232 and 245, are probably the key amendments in the group. I find it staggering that, whereas Wales implemented Schedule 3 to the Flood and Water Management Act 2010 as far back as January 2019, and in July published the first post-implementation review into Schedule 3, on SUDS, and how it had been implemented in Wales, we have still not implemented Schedule 3 in England. The reason why this amendment is required is that, since 2013, more than 10% of all new homes in England have consistently been built on land at risk of flooding, in particular flood zones 2 and 3.

I will quote briefly from page 47 of the revised National Planning Policy Framework, which was published this month. Paragraph 159 says:

“Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere”.

That simply does not go far enough. In essence, we have encapsulated in Amendment 232 a prohibition on building on residential flood plains. It is just not appropriate to continue to build on areas prone to flooding, displacing the water retained there into existing developments.

The reason why Amendment 231 is important is encapsulated by the work of CIWEM, the Chartered Institution of Water and Environmental Management, which came out with a report earlier this year, the findings of which are that

“Surface water flood risk is commonly managed by small teams frustrated by unclear duties and remit, complicated funding processes, fragmented data and a lack of capacity and skills”.

CIWEM has asked that the Government

“show greater leadership on surface water management … ensure that sufficient funding is provided to surface water management schemes … clarify and consolidate surface water management regulations, standards and plans” and

“improve approaches to the collection and sharing of data and development of asset registers”.

Those conclusions chime with many of the amendments and recommendations set out therein.

As far back as 2007, Sir Michael Pitt said that there should be an end to the automatic right to connect: that you cannot have developments which are in inappropriate places but also try to connect to inappropriate piping. That is why Amendment 245 is crucial. It calls on water undertakers—in effect, water companies—to become statutory consultees. I am mindful of what my noble friend Lord Howe said in summing up a previous debate about the number of statutory consultees to date, but I believe it is appropriate for water companies to become statutory consultees so that they will have the power in the same way as the Environment Agency, which can recommend against a particular development being built in an appropriate place to make sure that it connects only where the infrastructure is appropriate. It is not appropriate to connect new developments to antiquated pipes that simply cannot take them.

In fact, Amendment 245 would help the Government, who were criticised as recently as yesterday by the Office for Environmental Protection for falling short in their understanding of its review of sewage spills over recent years. As well as Defra, the OEP has criticised Ofwat and the Environment Agency. Amendment 245 would assist the Government by ensuring an end to an automatic right to connect, which was called for as far back as 2007, following the floods, by Sir Michael Pitt.

Sustainable drains are part of this. Any new development should be built only if there are sustainable drains. They could be natural or physical, but they should ensure that the water is kept out of the combined sewers at all costs. This has to be front ended. We have to stop building three, four or five-bedroom houses, which multiply by three, four or five the amount of wastewater—let us call it what it is: sewage—which so often spills into the combined sewers, causing a health hazard, or on to public highways. Let us note that no highway authority is contributing in any shape or form financially to keeping the water out of those combined sewers. That is why Amendment 231 is required.

Amendment 232 would ban residential building on flood plains for the reasons I rehearsed a moment ago. That is a key amendment, along with Amendments 231 and 235.

Amendment 236 contains a duty to make flooding data available. This was one of the conclusions reached by CIWEM, but it was also one of our conclusions in the Bricks & Water reports: that we need to ensure that flooding data is available and publicised to those who need it. That was the genesis of the amendment: in effect, that the Environment Agency should ensure that the flood map for planning should be expanded to include all current and future sources of flood risk, and assist with the application of the sequential test and site-specific risk assessment, which are referred to in the National Planning Policy Framework.

Again, Amendment 240 was a recommendation of the Bricks & Water reports looking at flood risks: that Part C of the building regulations should be strengthened to require all properties at high risk of flooding to include property flood resilience measures. These measures should be specified and installed in accordance with the CIRIA code of practice for property flood risk. Is it not just common sense to encourage individual home resilience to help individual home owners, but also for the greater good?

Amendment 237 again is a Bricks & Water recommendation:

“Given the limited uptake of property flood resilience measures and continued development within the floodplain, Government should either extend the Flood Re scheme to cover residential buildings constructed after 1st January 2009, or put in place an alternative scheme. This should be evaluated as part of the ongoing Blanc review into flood insurance”.

I think the noble Baroness, Lady Hayman, has lent her support to that amendment and I am grateful to her for that. It is important to remember that when Flood Re was created it was assumed that no new houses would be built on flood plains. As we know, since 2013, 10% of new homes continue to be built on flood plains.

Amendment 238 is a recommendation that it should be mandatory for all insurers to offer Build Back Better funding reinvestment costs of up to £100,000 over and above the work to repair damage caused by a flood.

I am delighted to support Amendment 240, which I think the noble Baroness, Lady Hayman, will speak to. It is important that we have those flood risk recommendations.

Amendment 241 states that all insurers should offer discounted premiums to customers who install property flood resilience measures in accordance with the CIRIA code of practice.

With those brief remarks, I believe that each and every one of the amendments in this group is extremely important. There is an urgency to SUDS being implemented by Schedule 3 to the Flood and Water Management Act 2010. It should be implemented this year rather than delayed to next year. There is an urgency to completely preventing future housebuilding on flood plains. It is vital that, as Amendment 245 sets out, water companies become statutory consultees so that, where there is no way of connecting a major housing development to existing infrastructure, the water companies should be allowed in the terms of the price review, which is every five years, to make the relevant investment they are required to make. I beg to move.

Photo of Lord Wigley Lord Wigley Plaid Cymru 12:15, 13 September 2023

My Lords, I rise to speak very briefly on this matter. I welcome the amendment being proposed by the noble Baroness, and the comments that she has made. I have not been intervening very much on most of this Bill, particularly those parts, like most of these, that apply to England only. But of course, with regard to drainage, water flow and rivers, there are cross-border issues.

The noble Baroness kindly referred to some of the progress that we have made in Wales on some of this, which of course we welcome, but goodness knows there is much more that needs to be done in Wales as well as in England. In any work that is undertaken in England this way, the co-ordination between what happens in England and in Wales on these matters is of vital importance. Therefore, I believe that the noble Baroness has, in a number of these amendments, put her finger on matters that are important in Wales as well. We have to deal with certain aspects of those ourselves, but we also have to co-ordinate where that is appropriate.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I stand to introduce my Amendment 240, and also to speak briefly in support of the amendments tabled by the noble Baroness, Lady McIntosh of Pickering.

My Amendment 240 is on flood prevention, mitigation certification and accreditation schemes. The reason I have tabled this amendment is that it does concern me that, when we have areas that have suffered major flooding, with both residential and business properties damaged, often the incentives to “build back better”—to put in flood mitigation and systems such as, in a residential building, a different sort of kitchen, different flooring, flood doors and so on—have not always been the eventual outcome when repairs have been done. It is also about the actual standard when they are put in: what kind of standard are the building repairs, which are being paid for by insurance companies? Whenever there is a major flooding event, insurance companies have an enormous amount of work to do, and we should thank them for that. Most insurance companies work very hard to provide a good service. But we have to be careful to make sure that all the equipment and facilities that are available are of the right standard and that appropriate mitigation is being put in place, which is why I have brought my amendment forward.

On the amendments of the noble Baroness, Lady McIntosh of Pickering, I just wanted to make a few comments. Her Amendment 231 is about sustainable water management and sustainable drainage; I know this is a topic that is very close to the noble Baroness’s heart, and I completely support her on what she is trying to achieve through this. We know that sustainable drainage systems—SUDS—can play a pivotal role in ensuring that new properties are built in a way that manages surface water flood risk at a local level. We also know that the Government have a really good policy on SUDS under the Flood and Water Management Act, which the noble Baroness referred to. I think the frustration is that we now need the Government urgently to implement this, so that we can benefit from the announcements. The Government announced in January that it was going to be mandatory in all new developments, so we need to crack on with the implementation of this. We would very much support the noble Baroness’s amendment on that.

On the noble Baroness’s Amendment 232, on basically not building any more on flood plains, we again strongly support the noble Baroness in her efforts to achieve this. We know that the insurance industry, through the ABI, has been calling for the Government to ensure that there is no inappropriate development on flood plains and flood risk areas, and also that we need a more transparent planning application system in regard to this. One of their asks is that the Government link future residential and commercial developments to the building regulations approved documents. Again, it will be interesting to hear the Minister’s thoughts on that.

This Bill is also reviewing the National Planning Policy Framework, so we think that brings forward an opportunity to really set how this should happen, to ensure that we do not get inappropriate building. I remember there was one case when there was a large flood—I live in an area that floods—and there was a new development called “Water Meadows”. After the flooding had gone away, it was called the “Meadows”. That was very disingenuous of developers, and I think we need to get to grips with this. If the noble Baroness wishes to put her Amendment 232 to a vote, we would be very happy to support it.

Photo of Baroness Pinnock Baroness Pinnock Liberal Democrat Lords Spokesperson (Levelling Up, Communities and Local Government)

My Lords, the important amendments that the noble Baroness, Lady McIntosh of Pickering, has tabled to the Bill demonstrate how wide-ranging the Bill is. These amendments themselves could benefit from an individual Bill, because they are so critical to the future both of development and of environment preservation in our country. To be able to spend only 30 to 40 minutes debating them is a great shame, because the noble Baroness raises very significant issues.

The reason that these issues are so important was not stated, but I will state it because it is fundamental. We know that climate change will inevitably lead to higher rainfall and, therefore, to higher potential flood risks. All water companies, I know, have to take that into account in their 25-year plans when developing their own infrastructure, to make sure that it is flood resilient. If they are doing that, then surely the Government and Parliament itself have a responsibility to help developers build in such a way that housing, in particular, is either not built on flood plains or is built to be totally resilient to increasing water levels and flood risk as a result of climate change.

The Environment Agency has a hierarchy of flood zones: 1, 2 and 3. Flood zone 3, the high-risk one, is separated into two parts: 3a and 3b. Flood zone 3b is what we would describe as a functional flood plain: where water goes when there is heavy rainfall. There should not be any development on flood zone 3b, and on 3a only after very clear advice that it should not be there during a planning application or consultation. That is the essence of Amendment 232, of the noble Baroness, Lady McIntosh.

Too many homes are currently being built on areas at risk of flooding. The consequence is that in a few years’ time, as rainfall increases as a result of climate change, those same houses will be at greater risk of being flooded. That cannot be right; we ought to be dealing with that at the planning and construction stages.

Finally, the Government need to try to develop some joined-up thinking on development and flooding. The Environment Agency is clear on its zoning; local flood management groups are statutory consultees on planning applications and have to give clear advice. Yet, in the new version of the NPPF, as the noble Baroness has pointed out, that clarity and that robust advice are not there. In order to be transparent to developers and local people—or those who may buy houses built in flood risk areas—we ought to strengthen the government advice in the new NPPF document.

I obviously completely support Amendment 240 in the name of the noble Baroness, Lady Hayman of Ullock. However, of all the amendments we have debated, it is Amendment 232 in the name of the noble Baroness, Lady McIntosh—which would safeguard high-risk flood zones from development and people who may inadvertently purchase a house built in a high-risk flood zone—that would provide clarity. Let us get that clarity because although the Environment Agency and local flood management groups will be clear, the Government are not as clear. This amendment would give that clarity of purpose: do not build in flood zones 3a and 3b for domestic purposes. If the noble Baroness, Lady McIntosh, wishes to test the opinion of the House on this critical issue, we on these Benches will support her.

Photo of The Earl of Devon The Earl of Devon Crossbench 12:30, 13 September 2023

My Lords, I had not expected to speak but this interesting debate has raised a couple of questions which maybe the Minister or the noble Baroness, Lady McIntosh, may address, particularly concerning Amendment 232.

I note that I am a member of the Wetlands APPG, so wetlands and flood plains are very close to my heart. I am also a member of the Devon Housing Commission so the cost and availability of housing in rural areas is very close to my heart too. There is a conflict here and I wonder whether Amendment 232 would have too big an impact on the availability and affordability of housing in areas near these floodplains.

I wonder whether the Minister or the noble Baroness, Lady McIntosh, if she sums up, can assist me on that point. I also wonder, given that we have just discussed the biodiversity net gain principle, whether we can apply that principle to building housing on these sensitive areas, such that if flood plains are being used up to create residential housing in essential areas, we look to invest in creating further areas for flood relief and landscaping to offset and ameliorate the problems created by building in these important areas where housing is required because it tends to be accessible and somewhat more affordable.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, as we have heard, this group of amendments addresses a range of issues relating to water management and flood risk and I think it appropriate for me to begin by responding to Amendment 231, the first amendment in this group. I am grateful to my noble friend Lady McIntosh of Pickering for this amendment because it gives me the opportunity to tell the House that following publication of the review for implementation of Schedule 3 to the Flood and Water Management Act 2010 earlier this year, the Government are actively working on how best to implement Schedule 3.

An ambitious timeline has been set to deliver this quickly and that is why we have already committed to implementation in 2024 following statutory consultation later this year. I am sure my noble friend will understand how essential it is that we allow sufficient time to engage with stakeholders to help shape the details of implementation. Schedule 3 provides for a public consultation which must take place on the national standards. We have also committed to consult on the impact assessment and will need stakeholder views to inform decisions on scope, threshold and process in order to draft the secondary legislation required to implement Schedule 3. I hope that reassures my noble friend regarding her Amendment 231 and that, on that basis, she will not feel the need to press it.

Amendments 232 and 237 in my noble friend’s name would prevent planning permission for residential development in functional flood plains and high-risk flood areas and create a new duty for the Secretary of State to make building regulations within six months for property flood resilience, mitigation and waste management in connection with flooding. I listened carefully to what my noble friend and the noble Baronesses, Lady Pinnock and Lady Hayman, had to say. Let me explain where the Government are on this. Planning policy directs development away from areas at the highest risk of flooding. Building regulations set drainage system requirements for individual buildings and the main sewerage system is governed by the sewerage undertaker for the area.

As I said, I listened carefully to the arguments put forward but contend that the Government have well-established means of making sure that new developments are not approved where there is an unacceptable flood risk. I would argue that the Environment Agency and local authorities are the right bodies to oversee the maintenance of existing flood mitigation measures and, for these reasons, in our view introducing new requirements into the building regulations is not necessary.

New housebuilding—I hope I can reassure the noble Earl, Lord Devon, on this—and most other forms of development should not be permitted in the functional flood plain where flood-water has to flow or be stored. But it is important that local councils follow the sequential risk-based policy in the framework, steering new development away from areas known to be at risk of flooding—now or in the future—wherever possible. However, sometimes it is necessary to consider development in such areas. Banning development entirely in flood risk areas would mean that land that could safely be built on could no longer provide the economic opportunities our coastal and riverside settlements depend on. That is why I say to the House that we should trust our local authorities to make sensible decisions about what development is appropriate in their area. Having said that, we will of course keep national planning policy on flood risk and coastal change under review, as noble Lords would expect.

Amendment 236 would place a duty on the Government and local authorities to make data about flood prevention and risk available for the purpose of assisting insurers and property owners. Data about flood prevention and risk, including for planning purposes, is already publicly available, provided primarily by local authorities and the Environment Agency. Creating new duties on government and local authorities to publish this data is therefore unnecessary. Insurers can already access information, and to require government or local authorities to facilitate their use of the information would create unnecessary burdens on our public services. Within both the Environment Agency and the insurance industry, the modelling of UK flood risk continues to improve, resulting in models and maps than can assess flood risk at more detailed geographical levels, taking into account all the drivers of risk.

Amendment 238 would require the Financial Conduct Authority to make rules requiring insurance companies to participate in the currently voluntary build back better scheme, which was launched by Flood Re in April 2022. Amendment 239 extends the flood reinsurance scheme to premises built since 2009 that have property flood resilience measures that meet minimum standards and buildings insurance for small and medium-sized enterprise premises.

The build back better scheme is still in its early days and has not yet been fully embedded or tested. This is therefore not the right time to consider making changes. Properties built since 2009 should be insurable at affordable prices because of the changes to planning policy in 2006. If Flood Re were applied to homes built after 2009, that would be inconsistent with current planning policy.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I am slightly concerned because the legal position is very clear: any new development built after 2009 on a flood plain, whether functional or not, simply does not qualify for insurance. That is the purpose of the amendment. Unfortunately, if a house purchaser does not require a mortgage, they will not realise that they are not covered by insurance until such time as they are flooded, hence the need for the amendment.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I am in some difficulty because the advice that I have received is different. I shall need to take advice and write to my noble friend on that point. I come back to what I said earlier: properties built since 2009 should be insurable at affordable prices because of the changes made to planning policy back in 2006. That is the position as we understand it.

With regard to small and medium-sized enterprise premises, Flood Re was designed to provide available and affordable insurance for households, but that does not include businesses. There is no evidence of a systematic problem for businesses at high flood risk accessing insurance.

Amendments 240 and 241 would require, first, the Government to establish a certification scheme for improvements to domestic and commercial properties in England made for flood prevention or flood mitigation purposes and, secondly, the Financial Conduct Authority to make rules requiring insurance companies to consider flood prevention or mitigation improvements that are either certified or planning permission requirements in setting insurance premiums.

We are committed to promoting the uptake of property flood resilience and are working closely with Flood Re, the property flood resilience round table and the insurance industry to determine how best to develop the mechanisms needed for insurers to take account of property flood resilience when setting premiums. Additionally, the industry is exploring how to improve standards and skills. For example, as part of the joint Defra and industry round table, the Chartered Institution of Water and Environmental Management is developing a certified competent PFR practitioner scheme to help grow the pool of trained professionals and improve the standards for the design, installation and maintenance of PFR projects.

Amendment 245 in the name of my noble friend Lady McIntosh seeks to make water undertakers—that is, water and sewage companies—statutory consultees on planning applications for major development that is likely to affect water supply. I am grateful to my noble friend for this amendment. Like her, I appreciate the important role of water undertakers in maintaining public health and ensuring access to clean water for communities. This is why in the other place the Government committed to consult after Royal Assent on whether we should make water companies statutory consultees, how that would work in practice and any implications flowing from that. As the DLUHC Secretary of State can make changes to the list of statutory consultees through secondary legislation, we do not need to use the Bill to do that. With that in mind, I hope my noble friend will not feel the need to move her amendment when we reach it.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 12:45, 13 September 2023

My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Wigley, for supporting Amendment 231 and the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock, for their support. I will not go through each and every amendment.

Amendment 245 is a direct consequence of the Pitt recommendation to end the automatic right to connect. We are placing the Government, the department, Ofwat and the Environment Agency, but in particular the water companies, in a difficult position by forcing them to connect when the pipes simply cannot take the sewage. It goes into the watercourses right at the beginning of the process, then into the rivers and to the coast, and we know that everyone gets upset about that.

To correct my noble friend, the ABI briefing for today’s debate says: “It is important to note that Flood Re does not provide cover for properties built after 1 January 2009. The 2009 exemption is an extension from previous amendments between the insurance industry and the UK Government, which jointly agreed to purposely exclude these properties from the scheme to ensure that inappropriate building in high flood risk areas was not incentivised”. That is why I shall be pressing Amendment 232 to a vote.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

If my noble friend would be kind enough to give way, I will repeat that my advice is that properties built since 2009, as she said, are not eligible for Flood Re. However, they should be insurable via the commercial market.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

Hand on heart, I do not know of any commercial insurance company—I know others are better versed on that, including the noble Lord, Lord Hunt—that would offer that.

I will respond briefly to the comments of the noble Earl, Lord Devon, which raise wider issues. I believe we are fixated on new build, which is forcing people to build on flood plains. One measure would be to remove VAT on the renovation of houses and put VAT on new build. But I believe it is the responsibility of local authorities to rule out building on flood plains where the direct consequence of that will force floodwater and displaced water into existing developments. I do not think the National Planning Policy Framework adequately addresses that. I will not go on any further, except to beg leave to withdraw Amendment 231.

Amendment 231 withdrawn.